Offence of making unauthorised disclosures

Investigatory Powers Bill – in a Public Bill Committee at 2:45 pm on 14th April 2016.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 2:45 pm, 14th April 2016

I beg to move amendment 79, in clause 51, page 41, line 18, at end insert—

“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.

The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.

The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.

If the clause stands part of the Bill in its current form, it will help to enshrine an unnecessarily secretive culture that punishes those who seek to reveal wrongdoing, rather than encouraging a robustly honest working environment. Individuals who wish to make reports, even internally, of unlawful or otherwise inappropriate behaviour—we are talking about unlawful behaviour, not just inappropriate behaviour—will know that taking steps to do the right thing could expose them to a significant criminal sanction and a significant period of imprisonment. In a Bill that seeks to bring new levels of transparency to the UK’s surveillance regime, introducing such an offence without a defence of disclosure in the public interest is undemocratic and unacceptable.

A number of bodies have expressed concern about the lack of such a defence in the Bill. Public Concern at Work has highlighted that the channels through which intelligence services personnel may report misconduct are uncertain in the Bill, and it suggests that clarity is particularly important in that area in light of the limitations of the protections afforded by the Public Interest Disclosure Act 1998, which protects internal disclosure, disclosure to prescribed bodies and wider disclosures to bodies and organisations not prescribed, applying different safeguards in connection with each type of disclosure. There are exceptions to that, and the relevance to the Bill is that members of the intelligence services are completely excluded from the Public Interest Disclosure Act’s protection. The Act’s protection also does not extend to workers in other sectors where their disclosure would breach the Official Secrets Act 1989.

The defence would not be a licence for clypes, as we call them in Scotland—people who tell tales. It is a strongly worded defence, and the disclosure would have to be in the public interest. The defence is not just for people—we have all come across them—who want to cause problems or to rattle their employer’s cage; it would have to be disclosure in the public interest. The Joint Committee on the draft Bill recommended that it be amended to specify that any disclosure to the Investigatory Powers Commissioner for the purpose of soliciting advice on any matter, or for the purpose of supporting the duty to review, would be an authorised disclosure and not subject to any criminal penalty. The Joint Committee also recommended that a provision should be inserted in the Bill to allow for direct contact to be made between judicial commissioners and both communication service providers and the security and intelligence agencies.

Clauses 49 to 51 authorise the disclosure of information relating to certain matters, but it is unclear whether persons disclosing other information will be subject to the offence. It is far from clear where there are similar statements for whistleblowers. My purpose in moving the amendment is to create a safe route for whistleblowers where their disclosure is in the public interest.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 3:00 pm, 14th April 2016

The purpose of the amendment is to state clearly on the record what the safe route is for whistleblowers. There are similar versions in other legislation, including the Official Secrets Act, and the absolute prohibition causes great concern to those who want to expose iniquity. In certain cases and places, the safe route for a whistleblower has been explained. The challenge on the table for the Minister is recognising the concerns and anxieties of those who want to disclose wrongdoing where it is in the public interest for them to do so. There must be a safe route for them. If not this, what is the route? In support of that way of putting it, I pray in aid the Joint Committee recommendation that there ought to be amendment to make it clearer for those who need to know what the route is.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

This is an interesting amendment. It deals with the tension, which I think all Committee members recognise, between allowing the proper opportunity for those who have legitimate concerns to bring them forward to be dealt with and encouraging feckless complaint. Much of what we do in this House in framing law means dealing with that dilemma, and this is a good example.

The hon. and learned Gentleman—I think that the hon. and learned Lady said it first, actually—drew particular attention to the Joint Committee report. I refer to paragraph 629, which recommends that

“the Bill should contain an explicit provision for Communication Service Providers and staff in public authorities to refer directly to the Judicial Commissioners any complaint or concern they may have with the use of the powers under the Bill”,

and goes on similarly.

That is precisely what we intend and what we have tried to set out. That said, the hon. and learned Lady will understand that it is important to create a duty, as clause 49 does, not to make unauthorised disclosures. Clause 50 sets out the exceptions to that duty, and clause 51 provides for the offence of making an unauthorised disclosure. Providing a public interest defence of the kind that she discussed is unnecessary in light of the exceptions already in the Bill. In my view, it might even encourage feckless or unlawful disclosures.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

The defence would not apply to a feckless or unlawful disclosure. If somebody sought to pray in aid that defence, the jury would have to decide, under legal direction from a judge, whether what had been done was in the public interest. Something feckless—which I gather means “without good reason”—would not be in the public interest.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

There is a balance to be struck, of the kind that I described. The hon. and learned Lady is right that the route to the commissioner must be clear and straightforward, allowing people of the kind that the hon. and learned Gentleman described to know how they can bring their concerns to his attention. That is why clause 203 provides the information gateway that I spoke about earlier. That is the point made by the Joint Committee. What we have done in clause 203 is essentially give life to the Committee’s recommendations about a direct route to the commissioner.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

Does the Minister accept that there might be situations in which an immediate disclosure is required to prevent conduct that is seriously unlawful? That is the situation where the defence is required. Somebody might find themselves in a position of having to make a public disclosure immediately to prevent unlawful conduct. Rather than going around the houses looking for advice or being assured after the fact that what they did was all right, they need to know that there is a defence of public interest to encourage them to make a disclosure immediately to prevent unlawful conduct.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

Yes, but I am not so sure that, in the modern age, we do not live in precisely the opposite circumstance to the one the hon. and learned Lady sets out. All kinds of information are put into the public domain, whether for right or wrong and whether for good or bad reasons. That information cannot then be withdrawn and it is often taken to be fair and true, when it is anything but. I am not so sure that we do not need a process that is sufficiently rigorous that the commissioner is better placed to take a view on what is, or is not, in the public interest.

I will go further than that. It seems to me that, if we are going to have the commissioner, we have to vest power in his or her hands. If we then created all kinds of other means for dealing with these issues, I suspect that would undermine the commissioner’s significance and discourage people from taking their concerns to the commissioner.

However, I think perhaps we can reach a synthesis around the way we make the route known. In clause 203, we have done what the Joint Committee asked us to do—I note that there are distinguished Members sitting behind me who were on that Committee. But I am not sure that we have thought enough about how to inform people about the route they can take under clause 203, so I will ask my officials to look at that again. There is an information challenge here, because it is all very well for the cognoscenti—there are many of them in this room—to know about such things, but I am not sure that that is good enough. So I will meet the hon. and learned Lady halfway—halfway in my judgment, at least, even if not in hers—by ensuring that we look closely at how well informed people are about their ability to go down the route I have set out. On that basis, I ask her to withdraw the amendment.

Question put, That the amendment be made.

Question proposed, That the clause stand part of the Bill.

Clause 51 ordered to stand part of the Bill.

Clause 52 ordered to stand part of the Bill.

Clause 53